State Consumer Disputes Redressal Commission
M/S Northern Motors Private Limited vs Bahadur Singh Son Of Shri Tarsem Singh on 17 May, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, SCO NO.3009-10, SECTOR 22-D, CHANDIGARH First Appeal No.822 of 2008 Date of Institution : 6.8.2008 Date of Decision : 17.5.2010 M/s Northern Motors Private Limited through its Manager, Opp. Govt. Bursery, G.T.Road, Jalandhar Appellant Versus 1. Bahadur Singh son of Shri Tarsem Singh, resident of Village Lohat, Tehsil Balachaur, District Nawanshahr, Prop M/s Suri Medical Store, Balachaur, District Nawanshahr. 2. M/s Hindustan Motors Ltd., through its Managing Director, 6, GST Road, St.Thomas Mount, Chennai 600 016. 3. M/s H.D.F.C. Chubb General Insurance Company Limited through its Managing Director, Registered Office, Ramon House, HT Parekh Marg, 169, Backhay Reclamation, Mumbai 400020. 4. M/s United Insurance Company Limited through its Managing Director, Oriental House A-26/27, Asaf Ali Road, New Delhi 110002 Branch Office, Bazid Palace, Rahon Road, Nawanshahr (Deleted vide order dated 25.11.2009). 5. M/s Oriental Insurance Company Ltd. Through its Managing Director, Oriental House, A-26/27, Asaf Ali Road, New Delhi 110002, Branch Office Bazid Palace, Rahon Road, Nawanshahar from United India Insurance Company Limited. Respondents Appeal against the order dated 28.3.2008 of District Consumer Forum, Jalandhar. BEFORE Honble Mr.Justice S.N.Aggarwal, President Mrs.Amarpreet Sharma, Member
PRESENT For the appellant : Sh.Sandeep Jain, Advocate For respondent no.1 : Sh.Pankaj Gupta, Advocate For respondent no.2 : Sh.P.K.Kukreja, Advocate For respondent no.3 : Sh.R.C.Gupta, Advocate For respondent no.4 : Sh.Naveen Kapoor, Advocate JUSTICE S.N.AGGARWAL, PRESIDENT This order will dispose of two appeals namely First Appeal No.822 of 2008 (M/s Northern Motors Private Limited Versus Bahadur Singh and others) and First Appeal No.846 of 2008 (M/s Hindustan Motors Limited Versus Bahadur Singh and others) as both these appeals are directed against the same impugned order dated 28.3.2008. The facts are taken from First Appeal No.822 of 2008 and the parties would be referred by their status in this appeal.
2. Bahadur Singh, respondent no.1 (in short the respondent) had purchased Mitsubishi Lancer GLXD 1998 CC (Diesel) car from the appellants for a sum of Rs.9,32,829/- on 1.5.2004. The respondent had taken loan from ICICI Bank Ltd. for this purpose.
The vehicle was got registered at R.C. No.PB-20-A-0007. It had warranty period of 24 months or 40,000 km., whichever was earlier. It was insured with M/s HDFC Chubb General Insurance Company Ltd., respondent no.3 for a sum of Rs.8,86,188/- for the period from 1.5.2004 to 30.4.2005. It was further pleaded that insurance policy was got renewed for the period from 1.5.2005 to 30.4.2006 for a sum of Rs.7,50,000/- from Oriental Insurance Company Ltd., respondent no.5.
3. It was further pleaded that the performance of the car was not satisfactory. On 26.5.2004, it had covered the mileage of 1350 km. It was taken to the workshop of appellants for 1st free service.
The respondent had also lodged a complaint about the defect in the pick up of the said car. Thereafter the respondent had taken the car to the workshop of the appellants on 23.7.2004, 9.9.2004, 24.10.2004 and on 11.11.2004. He had also lodged the complaint regarding the noise from the left wheel of the said car, wobbling, belt noise and pulling towards right side. However the appellants put off the matter by saying that these defects were general wear and tear of the car.
4. It was further pleaded that on 7.1.2005, the respondent went to Delhi along with his dispenser Sh.Hardeep Singh. While in Delhi, the car did not start inspite of best efforts. The respondent managed to carry the car to the workshop of the appellants by towing the same with another vehicle no.PB-20-9119 for which the respondent made the payment of Rs.12,000/- as towing charges. After inspection of the car, the appellants had informed the respondent on 8.1.2005 that engine of the car had seized. The appellants kept the car with them upto 22.1.2005 and raised the bill of Rs.87,971/- for repairing the Engine. The appellant did not allow the respondent to take back the vehicle without payment, although it was within the warranty period. The respondent made the payment of Rs.60.000/- out of this amount of Rs.87,971/- on 22.1.2005.
5. It was further pleaded that the respondent had not lodged any claim with the Insurance Company as there was no accidental damage to the vehicle. However, the appellants had informed the insurer, respondent no.3.
6. It was further pleaded that this car again gave problem. Then it was taken by the respondent to the workshop of the appellants on 28.4.2005 and it was got checked from their workshop. The appellants had charged a sum of Rs.3,046.50p from the respondent, although this time also the car was within the warranty period. On that date, on the insistence of the appellants, the respondent also made the payment of Rs.21,000/- as the balance payment of Rs.87,971/- in full and final settlement.
7. It was further pleaded that again on 21.6.2005 when the respondent was driving the car near Derabassi it stopped. It never re-started. The respondent managed to tow the car and bring the same to Chandigarh by making payment of Rs.1,500/- to M/s Premier Motor Garage, Chandigarh who were dealers of manufacturers M/s Hindustand Motors Limited, respondent no.2. On the advice of M/s Premier Motor Garage, the respondent took the car to Surinder Singh by towing the same and by making the payment of Rs.7,000/- as towing charges. On 22.6.2005, the respondent took the car to the appellants and since then it is lying parked with them.
8. It was further pleaded that this car did not run smoothly due to the manufacturing defect. The respondent is spending about Rs.1000/- per day for managing another car. The car failed to run even 20000 kms without any complaint as it was suffering from material manufacturing defects. The respondent also claimed Rs.18,50,000/- on account of mental tension, harassment, inconvenience and financial loss suffered by him because of the manufacturing defect in the car.
9. Alleging deficiency in service on the part of appellants and respondent no.2, the respondent filed a complaint against them for replacement of the car and in the alternative demanded the full price of the car.
Compensation, interest and costs were also prayed.
10. M/s Hindustan Motors Limited, respondent no.2 (appellant in First Appeal No.846 of 2008) filed the written statement. It was denied if the appellants were the authorised dealers or Service Station of respondent no.2. The relationship of the appellants and respondent no.2 were on principal to principal basis. The appellants are a separate entity than respondent no.2 and not the agents of respondent no.2.
11. It was admitted that respondent had purchased the car from the appellants. It was denied for want of knowledge if the respondent had got it financed from some bank. It was also admitted that the warranty of the car was for 24 months or 40,000 km, whichever occurred earlier, but the parties were bound by the terms and conditions of the warranty. It was denied if the respondent had ever contacted respondent no.2 about any defect in the car.
12. It was further pleaded that the respondent has not maintained the car as per the service schedule recommended by respondent no.2.
Respondent no.2 has nothing to do with the Insurance Company.
13. It was denied if the car was having any manufacturing defect or if it had started giving trouble from the dates of purchase or if it had low pick-up or if it was creating extra noise. The respondent had taken the delivery of the car after carrying a pre-delivery inspection. He was fully satisfied about the condition of the car.
14. It was further pleaded that the respondent had brought the car in the workshop of the dealer on 23.7.2004 after the coverage of 6357 kms, on 1.9.2004 after the coverage of 11029 kms., on 25.10.2004 after the coverage of 16652 kms. and on 11.11.2004 after the coverage of 16336 kms. for availing prescribed normal maintenance services. Although the schedule was not maintained by him, the job cards reveal that the respondent had never pointed out any alleged defect to the appellants. Respondent no.2 was having authorised dealers and service stations in and around Delhi. Receipt of Rs.12,000/- was false and fabricated document.
15. It was further pleaded that vehicle had met with an accident which fact was kept concealed by the respondent. On 8.1.2005, the car of the respondent was brought by Hardeep Singh, driver of the appellants with the complaint that the car did not start.
The respondent had completed all the formalities for getting the insurance claim from the Insurance Company. After carrying out the accidental repairs, the appellants had raised the demand bill for Rs.87,971/-. However, the respondent had made the payment of Rs.60,000/- only on 22.1.2005. He made the further payment of Rs.21,000/- on 28.4.2005 towards the full and final settlement after getting the vehicle repairs to his entire satisfaction.
Remaining amount was adjusted by the appellants towards the discount over the accidental repairs of the vehicle.
16. It was further pleaded that the respondent had not made any payment to respondent no.2 nor he has lodged any complaint with respondent no.2 about the alleged defect in the vehicle.
17. It was admitted that respondent had made the payment of Rs.3,047/- to the appellants towards the consumable items like wiper, blade, engine oil, oil filter, weight etc. Such consumable items were out of preview of warranty terms. It was denied if there was any deficiency in service on the part of respondent no.2. It was also denied if the respondent was a consumer qua respondent no.2. Dismissal of the complaint was prayed.
18. The appellants (appellants in First Appeal No.846 of 2008) also filed the written statement. It was admitted that the appellants were running the business in Jalandhar. It was also admitted that the respondent had purchased the car on 1.5.2004 from the appellants for an amount of Rs.9,32,829/- and the car was got financed by him from ICICI Bank Ltd. It was also admitted that the car was got registered at PB-20-A-0007. It was also admitted that the vehicle carried the warranty period of 24 months or 40,000 km. whichever was earlier. It was pleaded that the warranty was limited for exchange or repair of any part or parts/any replacement or repairs by reason of defective workmanship or defective material except battery, tyres etc.
19. It was denied for want of knowledge if the car was got insured from respondent no.3 or if the Insurance Policy was got renewed from respondent no.5.
20. It was denied if the car had any pick up problem or any defect relating to pick up or if it was creating noise or if it had wobbling problem. It was also denied if the appellants had told the respondent that these problems were due to wear and tear of the car.
Rather the respondent had taken the delivery of the car after carrying out pre-delivery test drive and after he was fully satisfied with the condition of the car. The respondent had brought the car to the workshop of the appellants on 23.7.2004 after covering the distance of 6357 kms., 9.9.2004 with the coverage of 11029 kms., on 25.10.2004 with the mileage of 16052 kms. and on 11.11.2004 with the mileage of 16336 kms. On all these occasions the respondent was duly attended by the appellants to his satisfaction and he had taken back the car after full satisfaction. The car had covered an average of 84 kms. per day.
21. It was admitted that the respondent had brought the car to the workshop of the appellants on 8.1.2005 by towing the same. On inspection it was found that the car had suffered an accidental damage. It was damaged from underneath the oil cooler pipe, oil cooler which were found leaking and consequential damage due to the driving of the car even after the leakage from the oil. The respondent was informed that the car had suffered the damage because of an accident and it was admitted by the respondent. He had also informed the appellants that the vehicle was comprehensively insured with respondent no.3 and that he was entitled to be indemnified by the Insurance Company for the loss suffered by the respondent because of accident of the car. As a result, the respondent had lodged a claim with the Insurance Company. The Insurance Company had deputed the Surveyor who assessed the loss and thereafter the respondent had asked the appellants to carry out the repairs. It was denied for want of knowledge if the respondent had spent any amount in towing the car.
22. It was admitted that the car remained with the appellants till 22.1.2005 for repair purposes. After the repairs, the appellants had raised the bill for an amount of Rs.87,971/- and the respondent was fully satisfied with the repairs carried out and he had taken the delivery of the repaired car on 22.1.2005 after making the payment of Rs.60,000/- and he had promised to make the payment of the balance amount.
It was denied if the appellants had informed the Insurance Company.
23. It was further pleaded that the respondent had brought the car to the workshop of appellants on 28.4.2005. By that time it had the meter reading of 27630 km. It was brought for regular service. The respondent had no complaint about the functioning of the car. After 22.1.2005, the car had travelled 7630 kms. On that time, the respondent had made the payment of Rs.21,000/- to the appellants as the balance amount against the bill for Rs.87,971/-. The appellants do not know about the towing charges allegedly paid by the respondent.
24. It was further admitted that the respondent had again brought the car to the workshop of the appellants on 22.6.2005 after having covered the mileage of 31744 kms. It had covered about 11000 kms. after it was repaired on 22.1.2005. The car suffered the damage on account of negligent, wrongful, imperfect and faulty driving of the car by the respondent. Once the car or any part is repaired after meeting with an accident, the warranty ceases. The car had developed defects because of misuse and mal-handling of the car. There was no manufacturing defect in the Engine or any other part of the car. The cause of damage to the Engine has nothing to do with the repairs carried out in January, 2005. It was denied if there was any deficiency in service on the part of the appellants.
Dismissal of the complaint was prayed.
25. Respondent no.3 did not come present and was proceeded against ex-parte.
26. Oriental Insurance Company Limited, respondent no.5 also filed the written statement. It was pleaded that respondent no.5 had not received any information about the manufacturing defect. The respondent had also filed a complaint on the same matter before the District Consumer Disputes Redressal Forum, Nawanshar (Consumer Complaint No.92 of 2005) which was dismissed as withdrawn vide order dated 19.12.2005. It was not denied that the respondent had got the vehicle insured from respondent no.5. It was denied if there was any deficiency in service on the part of respondent no.4.
Dismissal of the complaint was prayed.
27. The respondent proved documents Ex.C-1 to C-23. He also filed the affidavit of Sh.Hardeep Singh, Ex.C-24, Sh.Nirmal Singh, Ex.C-25 of Sh.Surinder Singh, Ex.C-26 and of Sh.Vasudev, Ex.C-27. The respondent also filed his own affidavit, Ex.C-28.
28. On the other hand M/s Hindustan Motors Limited, respondent no.2 (appellant in First Appeal No.846 of 2008) filed the affidavit of Preeti Kedia, Ex.RA. Respondent no.2 also proved documents Ex.R1/1, Ex.R-1/2 and Ex.R-1/3.
29. The appellants filed the affidavit of Sh.Jatinder Kumar Sharma, Ex.O2/A. The appellants also proved documents, Ex.R2/1 to Ex.R2/18. The appellants also filed the affidavit of Sh.Rajiv Jain, Ex.O2/B and documents Ex.R2/19 to R2/22. The appellants also filed the affidavit of Sh.Sanjeev Khanna, Surveyor, Ex.R-2/C and documents Ex.R3 to Ex.R3/34. Sh.Sanjeev Khanna also appeared as a witness. Another affidavit of Sh.Rajiv Chopra was filed as Ex.O2/D along with documents Ex.R2/35 to R2/41.
30. Respondent no.5 filed the affidavit of Sh.Satish Katyal, Senior Divisional Manager, Ex.OP4/A and documents Ex.OP4/1 to OP4/3. The District Forum also appointed Didar Singh Rooprai as Local Commissioner to examine the vehicle vide order dated 9.4.2007. He had inspected the car and submitted his report. He was also cross-examined.
31. After perusal of the pleadings of the parties and affidavits/documents placed on record by the parties, the learned District Forum accepted the complaint vide impugned order dated 28.3.2008. The appellants and respondent no.2 (appellants in First Appeal No.846 of 2008) were directed to replace the car. The appellants were also directed to pay Rs.50,000/- as compensation to the respondent for mental harassment and agony faced by the respondent due to long detention of the car by them.
32. Hence this appeal (First Appeal No.822 of 2008) by the appellants for setting aside the impugned order dated 28.3.2008.
33. Respondent no.2 also filed appeal (First Appeal No.846 of 2008) for setting aside the impugned order.
34. The submission of the learned counsel for respondent no.1 was that there was no merit in the present appeal and the same be dismissed.
35. The submission of the learned counsel for respondent no.3 was that there is no merit in the present appeal and the same be dismissed.
36. The record has been perused. Submissions have been considered.
37. The admitted facts are that Bahadur Singh had purchased Mitsubishi Car GLXD 1998 CC (Diesel) Car bearing Registration No.PB-20-A-0007 from the appellants on 1.5.2004 for a sum of Rs.9,32,829/-. He had got it insured from respondent no.3 for a sum of Rs.8,86,188/- for the period from 1.5.2004 to 30.4.2005.
38. It is further admitted between the parties that this car was taken by the respondent to the workshop of the appellants for the first time on 26.5.2004 when it had covered the mileage of 1350 km. On 23.7.2004 when it had covered the mileage of 6357 (Ex.R-2/1), on 9.9.2004 (Ex.R-2/2), on 25.10.2004 (Ex.R-2/4), on 11.11.2004 (Ex.R-2/5).
39. The respondent has proved Job Card dated 26.5.2004 (Ex.C-10) in which the respondent had complained of pick up problem besides the problem of rear door adjustment.
40. The Job Card dated 23.7.2004, Ex.R2/1 reveals that the respondent had lodged a complaint for less pick up and about rear door. He also reported about the Dash Board Noise and something about the Engine. In the Job Card dated 9.9.2004 (Ex.R-2/2) again the pick up problem was pointed out by the respondent besides some other problems in the car. The appellants had tried to do the needful. Similarly the Job Card dated 25.10.2004 (Ex.R-2/4) also reveals that some complaint about the noise from the front left side was made and pick up problem was also mentioned. Similarly in the Job Card dated 11.11.2004, wheel wobbling was mentioned. Rear side pulling and pick up problems were also lodged by the respondent with the appellants.
41. As per the version of the respondent, the Engine had stoped on 7.1.2005 when he had gone to Delhi along with his dispenser. The car did not start inspite of best efforts. It was towed down and was brought to the workshop of the appellants on 8.1.2005. The appellants had thought that the Engine of the said car had seized. The appellants repaired the job card and raised the bill of Rs.87,971/- (Ex.R-2/11). The delivery of the repaired car was given by the appellants to the respondent on 22.1.2005 (Ex.R-2/13). However the respondent had made the payment of Rs.60,000/- on that date against the bill of Rs.87,971/- (Ex.R-2/12).
42. The said car was again taken by the respondent to the workshop of the appellants on 28.4.2005 (Ex.R-2/14). The satisfactory note is proved as Ex.R-2/15. This time, the respondent had made the payment of Rs.21,000/- against the outstanding amount of Rs.27,971/- in full and final settlement (Ex.R-3/16).
43. Thereafter the car was taken by the respondent to workshop of the appellants on 22.6.2005 (Ex.R-2/16). As per the version of the respondent, the car had stopped on 21.6.2005 when the respondent was driving it near Derabassi. He had towed down the car by making the payment of Rs.1,500/- and had taken the car to the workshop of the appellants on 22.6.2005. The main complaint mentioned in the Job Card dated 22.6.2005 (Ex.R2/16) was Engine noise and that the vehicle did not start.
44. It is also admitted between the parties that since then the car is lying parked in the workshop by the appellants.
45. The first submission of the learned counsel for the appellants was that on 22.1.2005, the car had met with an accident and damage to the car was because of the accident and not because of the manufacturing defect in the car. For that purpose the learned counsel for the appellants made reference to the consumer complaint filed by the respondent for the first time in District Consumer Disputes Redressal Forum, Nawanshahar, Ex.R-2/21 in which he had taken the plea in para 13 that the appellants had not repaired the vehicle free of cost. The respondent had gone to the insurer, respondents no.3 and 5 for giving the insurance claim but they had also refused. It was submitted that if the vehicle had not met with the accident and if the damage to the car was because of manufacturing defect then there was no occasion for the respondent to go to the insurer for getting the claim. It proves that the vehicle had met with an accident which had caused extensive damage to the car.
46. The learned counsel for the appellants also made reference to the photographs Ex.R-2/23 to R-2/31 and submitted that from the photographs, it was clearly made out that damage to the car was because of accident.
47. It was also submitted that the respondent had taken up the matter with the Insurance Company. Sanjeev Khanna was appointed as the Surveyor by the Insurance Company, respondent no.3. The Surveyor had demanded certain documents from the respondent. The respondent failed to furnish those documents to the Surveyor. Then reminder was sent to him by Sanjeev Khana, Surveyor on 20.2.2005 (R-3/32). The respondent had received that letter vide acknowledgement, Ex.R-3/33. The Surveyor had inspected the car on 10.1.2005 when he was deputed by M/s HDFC Chubb General Insurance Company Limited, respondent no.3 to assess the loss. Then the Surveyor had reported vide letter dated R-3/34 that the respondent was not co-operating. Therefore, he was not in a position to assess the loss.
48. The learned counsel for the appellants also made reference to the Job Card of Harit Motors (P) Ltd. Panipat dated 7.1.2005, Ex.R-2/41 in which damage to the car of the respondent is also mentioned.
49. On the basis of these documents, the submission of the learned counsel for the appellants was that there was no manufacturing defect in the car. Infact the car had met with an accident on 7.1.2005 for which the respondent had driven the car to the workshop of the appellants on 8.1.2005. It is also submitted that because of extensive damage to the car in the accident, the repair bill for Rs.87,971/- was prepared and the repairs could not have been effected free of cost as it was a case of accident.
50. On the other hand, the submission of the learned counsel for the respondent was that the vehicle had not met with an accident on 7.1.2005.
The Engine had seized and there were other manufacturing defects in the car. The repairs were effected by the appellants within the warranty period and they were not justified in recovering a sum of Rs.81,000/- from the respondent. It was also submitted that the appellants had taken up the matter with the Insurance Company and the respondent had never lodged any claim with any of the Insurance Companies.
51. All these submissions have been considered.
52. If the vehicle had met with an accident on 7.1.2005 or it was an accidental vehicle when it was taken to the workshop on 8.1.2005, the appellants would have mentioned this fact in the job card. The Job Card dated 8.1.2005 has been proved by the appellants as Ex.R-2/10 and the repair Bill dated 8.1.2005 has been proved as Ex.R-2/11. It is nowhere mentioned by them if this car had met with an accident.
53. It may be that when the car stopped on 7.1.2005, the respondent might have contacted the insurer or the insurer might have appointed the Surveyor or the respondent might have got the vehicle inspected from Harit Motors (P) Ltd., Panipat, Ex.R-2/41 or he might have pleaded it, but there is no specific admission made by the respondent if the vehicle had met with an accident.
From sideline references, no presumption can be raised about the accident of the car till it was actually proved.
54. If the accident had taken place on 7.1.2005 and thereafter the vehicle was taken to the workshop of the appellants on 8.1.2005, the appellants would have recovered the whole bill amount from the insurer and would not have accepted the payment of Rs.60,000/- on the same day from the respondent by postponing the recovery of remaining amount of Rs.27,971/- out of which Rs.21,000/- were paid by the respondent on 28.4.2005, Ex.R-2/16. The appellants would have recovered the amount from the insurer without delay. Similarly the respondent would have lodged the insurance claim with the insurer when he had made the payment of a huge amount of Rs.60,000/- to the appellants on 22.1.2005 and of Rs.21,000/- on 28.4.2005.
55. On the other hand, as has been discussed above, the respondent had been taking the car to the workshop of the appellants frequently starting with immediately after its purchase and he had been making one complaint or the other with the appellants regarding the pick up problem in the car or its sound noise and the appellants had been removing those defects by mentioning the same in the Job Cards.
56. The non mentioning of the accident in the Job Card dated 8.1.2005 and non recovery of the amount from the insurer by the appellants or by the respondent is a clear indicator that the vehicle had not met with any accident.
The respondent had also proved on file Job Card dated 8.1.2005 (Ex.C-15) in which it is specifically mentioned that the car did not start. Therefore, the repairs on 8.1.2005 were necessitated by the manufacturing defect in the car. These defects were removed by the appellants and the repaired car was given to the respondent on 22.1.2005, Ex.R-2/13.
57. Since the vehicle was within the warranty period of two years from 1.5.2004, therefore, the raising of Bill of Rs.87,971/- and the recovery of Rs.60,000/- made from the respondent by the appellants on 22.1.2005 was totally unjustified.
58. Another submission made by the learned counsel for the appellants was that the respondent had also filed a complaint originally in District Forum, Nawanshahar which was got dismissed by the respondent as withdrawn, therefore, he was stopped to file a fresh complaint on the same cause of action in the District Consumer Forum, Jalandhar in which the impugned order dated 28.3.2008 has been passed. In this context, reference was made to the copy of original complaint filed by the respondent in the District Consumer Forum, Nawanshahar, Ex.OP4/3 (Ex.R-2/21).
59. However the respondent had made his statement, Ex.C-22, seeking permission of the court to withdraw that complaint as it suffered from some formal and technical defects without prejudice to his right to seek appropriate legal remedy. That complaint was dismissed as withdrawn by the District Forum on 19.12.2005, Ex.OP4/2 without prejudice to the rights of the respondent to seek appropriate legal remedy, if so advised.
60. It means, therefore, that the liberty was granted to the respondent to resort to the legal remedy, and therefore, the present complaint filed by the respondent in the District Forum, Jalandhar was not barred.
61. Even when the car was repaired by the appellants from 8.1.2005 to 22.1.2005 the car again became unroadworhty on 28.4.2005 and it was taken to the workshop of the appellants. It has already been discussed that on that date, the respondent had made the payment of Rs.21,000/- against Bill dated 22.1.2005. He had also made the payment of Rs.3046.50 which was the amount of fresh bill raised on 28.4.2005.
62. The car had again become unroadworthy on 21.6.2005 and it was taken to the workshop of the appellants on 22.6.2005 and since then the car is lying parked with the appellants.
63. It was stated by the respondent in his affidavit, Ex.C-28, that there was some defect in the Engine, the Bigun Connecting Rod was found damaged. The cranck shaft was damaged from the spot of 4 no. Bigun Connecting Rod. It is even admitted by the appellants that the car was brought to the workshop of the appellants by the respondent on 22.6.2005. It was not denied that the car had become unroadworthy.
64. However the appellants have alleged that the car had suffered damage on account of faulty driving of the car by the respondent. The car had developed defects because of mis-use and bad running of the car.
65. This submission of the learned counsel for the appellants is liable to be rejected for two reasons. Firstly there is no evidence if it was so driven rashly or negligently by the respondent and secondly it is unbelievable. No owner of a car would use his car negligently. This plea is against the principle of normal human behaviour. It is, therefore, clearly proved that the car had become un-roadworthy because of the manufacturing defect in the car.
66. The learned counsel for the appellants and respondentno.2 submitted that the expert witness has not been examined by the respondent to prove that the car was suffering from manufacturing defect. He has also relied upon the judgement of Honble National Commission dated 21.8.2009 passed in Revision Petition No.1163 of 2005 titled as Hind Motors (India) Ltd. Versus Shri Kushal Singh Thakur and others.
67. The facts of each case are different e.g. even in Kushal Singh Thakurs case (supra), the car had met with an accident. Only 9 Job Cards were proved. No complaint about the manufacturing defect in the car was made. Although the car was purchased on 10.6.1999, but no complaint was made regarding the functioning of the car prior to 21.4.2000.
68. However, in the present case, the car was taken to the workshop of the appellants on 26.5.2004 (Ex.C-10) i.e. soon after it was purchased on 1.5.2004. The complaint of pick up and poor adjustment was made immediately thereafter. Again it was taken on 23.7.2004 when the complaint regarding pick up and doors was made, Ex.C-11. It was again taken on 25.10.2004 when the complaint about the noise of front left side was made, Ex.C-12. It was again taken on 11.11.2004 when the complaint of wobbling, rear side pulling was made (Ex.C-13). It was again taken on 8.1.2005 with major defects specially Engine Jam which needed extensive repairs.
69. Since the vehicle was taken frequently by the respondent to the workshop of the appellants for removal of one defect or the other and for the major problem of Engine Jam, therefore, the manufacturing defect in the car is clearly proved and the deficiency in service on the part of appellants as also of respondent no.2 is also clearly proved even when the expert has not been examined. However, the respondent has never taken back the vehicle from the appellants after 22.6.2005. The fault lay with him and not with the appellants. Therefore, there is no justification about the replacement of the car.
70. This Commission has held in First Appeal No.1408 of 2008 titled as Hyundai Motor India Ltd. Versus M/s Om Parkash Kidar Nth decided on 29.5.2009 as under:-
We find merit in the submission of the learned counsel for the appellants that replacement of the car is not justified. The car has so many parts. It does not mean that whenever there is a manufacturing defect in any part of the car the manufacturer should be directed to replace the car. If the preposition of the replacement of the car is upheld then possibly each buyer would get replacement by alleging manufacturing defect in the car and the manufacturer would go on giving new cars to the purchasers in lieu of the old cars and the vendee will have the privilege of having a new car after one year or two years without making any payment for the new car.
Therefore replacement of the car is not justified.
71. Since the car was within the warranty period even on 22.6.2005, therefore, the recovery of Rs.81,000/- (Rs.60,000/- on 22.1.2005 and Rs.21,000/- on 28.4.2005) by the appellants from the respondent was totally unjustified. The respondent is entitled to the refund of this amount from the appellants.
72. The appellants never repaired the car after it was left in their workshop on 22.6.2005 nor they ever wrote to the respondent for taking back his car. Therefore, they are burdened with compensation amount of Rs.50,000/- payable to the complainant-respondent.
73. The respondent is also entitled to compensation for manufacturing defect in the car and for mental tension, harassment and frequent visits to the workshop of the appellants, the consolidated compensation of which is assessed to the tune of Rs.1 lac which would be payable by the manufacturers-respondent no.2 (appellants in First Appeal No.864 of 2008) to the complainant-respondent.
74. The appellants would make the car in working condition and replace the Engine of the car with new Engine free of cost and hand over the same to the respondent. The appellants would be entitled to recover the expenses from the manufacturers, respondent no.2 (appellants in First Appeal No.8460 of 2008) as it all has been necessitated due to manufacturing defect in the car.
75. The directions would be complied with within two months from the receipt of copy of this order.
76. In view of discussion held above, both the appeals stand disposed of and the impugned order dated 28.3.2008 is modified in the terms stated above.
77. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal on 6.8.2008. Another amount of Rs.2 lacs was deposited with this Commission on 19.1.2009 in compliance with the order dated 19.12.2008 passed by this Commission. Out of this amount, an amount of Rs.1,31,000/- be paid by the registry to the respondent (Bahadur Singh) after the expiry of 45 days. However, the appellants can recover Rs.81,000/- from the manufacturer. The remaining amount and the interest accrued on the amount be refunded to the appellants.
First Appeal No.846 of 200878. In view of the discussion held above, this appeal is also disposed of subject to the observations made above.
79. The appellants have deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount along with interest, if any, paid to the complainant-respondent by the registry after the expiry of 45 days under intimation to the District Forum and to the appellant. The remaining amount of compensation shall be payable immediately.
80. The arguments in these appeals were heard on 4.5.2010 and the orders were reserved. Now the orders be communicated to the parties.
81. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
( JUSTICE S.N.AGGARWAL ) PRESIDENT ( MRS.AMARPREET SHARMA ) MEMBER May 17, 2010 vr/-